(Nov. 20, 2018) On October 18, 2018, the Constitutional Court of Zimbabwe, the highest court in the land on all constitutional matters, found unconstitutional a provision in the 2002 Public Order and Security Act (POSA) that essentially empowers local police to indefinitely ban public demonstrations in their jurisdictions. (Carmel Richkard, A New Chapter for Human Rights in Zimbabwe?, AFRICANLII (Nov. 1, 2018).)
Section 27(1) of the Public Order and Security Act of 2002, as amended, accorded the regulating authority of an area—”police officers in command of each police district”—unfettered powers to suspend public gatherings, stating that,
[i]f a regulating authority for any area believes on reasonable grounds that the powers conferred by section 26 will not be sufficient to prevent public disorder being occasioned by the holding of processions or public demonstrations or any class thereof in the area or any part thereof, he may issue an order prohibiting, for a specified period not exceeding one month, the holding of all public demonstrations or any class of public demonstrations in the area or part thereof concerned. (Public Order and Security Act 1 of 2002, § 27(1) (Jan. 22, 2002), Zimbabwe Legal Information Institute (ZIMLII) website.)
According to the Act, “procession” means “a procession in a public gathering,” and “public demonstration” includes
a procession, gathering or assembly in a public place of persons and additionally, or alternatively, of vehicles, where the gathering is in pursuit of a common purpose of demonstrating support for, or opposition to, any person, matter or thing, whether or not the gathering is spontaneous or is confined to persons who are members of a particular organisation, association or other body or to persons who have been invited to attend. (Id. § 2.)
On September 1, 2016, Chief Superintendent Newbert Saunyama, the Officer Commanding the Harare Central Police District (the Regulating Authority of the District under the POSA), issued an order under section 27 of the POSA “prohibiting, for a period of two weeks from Friday, the 2nd September, 2016 to Friday, the 16 September, 2016, the holding of all public demonstrations in the Harare Central Police District.” (Public Order and Security (Temporary Prohibition of Public Demonstrations in the Central Business District of the Harare Central Police District) Order 2016, § 3, S.I. 101A, SUPPLEMENT TO THE ZIMBABWEAN GAZETTE EXTRAORDINARY (Sept. 1, 2016).) The next day, the appellants (then applicants) instituted a suit before the High Court at Harare “seeking the suspension of the [order] pending the determination of, among other issues, the constitutional validity of § 27 of [the] POSA.” (Democratic Assembly for Restoration and Empowerment & 3 Others v. Saunyama N.O. & 3 Others (CCZ 9/18, Civil Appeal No. CCZ 5/18)  ZWCC 9 (17 Oct. 2018)at 2, ZIMLII website.)
Although the High Court issued a temporary suspension of the Order pending a determination on the Constitutionality of the relevant POSA provision, which formed the basis for the ban of September 1, 2016, Superintendent Sunyama announced on on September 16, 2016, another notice banning “all processions and demonstrations in the Harare Central Police District for a period of one month,” causing the appellants (joined by another applicant not part of the initial suit) to return to the High Court seeking the ban’s suspension. (Id. at 3.) The High Court combined all the claims, found section 27 of the POSA constitutional, and dismissed the suit. (Id.) The matter was then appealed before the Supreme Court, which (under section 174(4) of the Constitution) referred the question of section 27’s constitutionality to the Constitutional Court.
According to the Constitutional Court the right to demonstrate is not absolute. The Court noted that the rights restricted by the Order issued under section 27 of the POSA are those enshrined under the “freedom to demonstrate and petition” clause of the country’s Constitution, which states that “[e]veryone has the right to demonstrate and present petitions, but these rights must be exercised peacefully.” (ZIMBABWE’S CONSTITUTION OF 2013, § 59, Comparative Constitutions Project website.) The Court added that, as demonstrated by the “freedom to demonstrate and petition” clause and the “limitation of rights and freedoms” clause of the Constitution, the rights must be exercised peacefully and “must always be exercised with due regard for the rights and freedoms of other persons.” (Democratic Assembly for Restoration and Empowerment & 3 Others v Saunyama N.O. & 3 Others, at 4–6.) Having established that section 27 of the POSA curtails the constitutionally guaranteed right to demonstrate and petition, the Court noted that the issue was whether such action was justified under the Constitution (Democratic Assembly for Restoration and Empowerment & 3 Others v Saunyama N.O. & 3 Others, at 9 & 12.), which permits limitations to be imposed on the right to demonstrate and petition
only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including–
a. the nature of the right or freedom concerned;
b. the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
c. the nature and extent of the limitation;
d. the need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;
e. the relationship between the limitation and its purpose, in particular whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and
f. whether there are any less restrictive means of achieving the purpose of the limitation (ZIMBABWE’S CONSTITUTION OF 2013, § 86(2)).
The Court described the broader impact of the ban on the constitutionally guaranteed right to demonstrate and petition as follows:
The ban imposed is blanket in nature and has a dragnet effect. During the currency of the ban, the rights to demonstrate and to petition peacefully are completely nullified. This includes demonstrations already planned at the time the ban is imposed and those that are yet to be planned. This also includes mass demonstrations and small demonstrations. It includes demonstrations of all sizes and for whatever purpose without discrimination. Like a blanket or a dragnet, it covers or catches them all.
To the extent that the ban does not discriminate between known and yet to be planned demonstrations, the limitation in s 27 has the effect of denying the rights in advance and condemning all demonstrations and petitions before their purpose or nature is known. It does not leave scope for limiting each demonstration according to its circumstances and only prohibiting those that deserve to be prohibited while allowing those that do not offend against some objective criteria set by the regulating authority to proceed.
The limitation in s 27 of POSA stereotypes all demonstrations during the period of the ban and condemns them as being unworthy of protection. (Democratic Assembly for Restoration and Empowerment & 3 Others v Saunyama N.O. & 3 Others, at 14–15.)
The Court found that “[t]o the extent that the limitation in s 27 stereotypes all demonstrations during the period of the ban, it loses impartiality and becomes not only unfair but irrational. (Id.) The Court further found that “[i]t is the blanket or dragnet effect of the ban that is permissible under s 27 of POSA that taints the whole provision. It matters not that the ban may be limited both geographically and in terms of time, a blanket or dragnet ban is neither fair, reasonable nor necessary. It is irrational.” (Id. at 16.)
In addition to “failing to pass the test on fairness, necessity, and reasonableness,” the Court found “disturbing” the indefinite nature of the power accorded to regulating authorities under section 27 of POSA to essentially, perpetually bar demonstrations. (Id. at 17.) It noted that the power accorded to the regulating authorities
has no time frame or limitation as to the number of times the regulating authority can invoke the powers granted to him or her under the section. Thus, a despotic regulating authority, could lawfully invoke these powers without end. This could be achieved by publishing notices prohibiting demonstrations back to back as long as each time the period of the ban is for one month or less. It thus has the potential of negating or nullifying the rights not only completely but perpetually. (Id. at 17.)
Having found section 27 of POSA unconstitutional, the Court, under section 175(6)(b) of the Constitution, suspended its decision for six months to allow the competent authority “to attend to the defects in § 27 of the Public Order and Security Act if they are so inclined.” (Id.)